Employment Judge CawthrayMr. A F Griffiths (instructed by Counsel) for respondentDate 21 July 2025
JUDGMENT
The claim of unfair dismissal is not well-founded and is dismissed.
REASONS
[1]The parties were both professionally represented.[2]At the start of the hearing Ms. Sutton stated that the Claimant required an Italian speaking interpreter. After some discussion and making enquiries I informed the parties that an Italian interpreter was available later that day. Ms. Sutton confirmed that the interpreter was only required whilst the Claimant was giving evidence.[3]No other adjustments were required by any party.[4]I was provided with a copy of a Bundle amounting to 207 pages and witness statements from the Claimant, and for the Respondent: Andrea Orru, Shayne Pope and Mauro Sanna.[5]The Respondent did not call Mr. Sanna as a witness, and no weight was attached his statement.[6]All other witnesses affirmed or gave a holy oath and were cross examined.[7]I informed the parties at the outset of the hearing that I would not read the bundle from start to end and that I needed to be directed to important documents.[8]The issues were are agreed between the parties, via their professional representatives, during the course of the morning but I did seek clarification on the parties’ respective positions.[9]Both parties gave oral submissions, and Ms. Sutton had provided a skeleton argument. Both parties provided case authorities.[10]There was not adequate time for me to deliberate and provide an oral judgment due to the delay at the start of the hearing in arranging for an interpreter to attend.
Issues
[11]Set out below are the issues, as provided and agreed. 1. Did the Claimant resign? 1. Did the Claimant resign during the meeting on 25 January 2024? 2. Was the Respondent entitled to treat the Claimant’s words, in the context of his absence as notice of resignation on 25 January 2024? 2. If not, was the Claimant Dismissed?a. did the Respondent expressly dismiss the Claimant under section 95(1)(a) of the Employment Rights Act 1996?b. was the Claimant constructively dismissed under section 95(1)(c) of the Employment Rights Act 1996? 3. If 2(a) Did the Claimant commit a fundamental breach of contract entitling the Respondent to dismiss the Claimant(a) summarily or(b) on notice? 1. What was the reason for the dismissal? 2. Was that a potentially fair reason under section 98(2) of the Employment Rights Act 1996?? 3. Was the dismissal reasonable under section 98(4) of the Employment Rights Act 1996? 4. Else, if 2(b) Did the Respondent commit a fundamental breach of contract by way of the following, the last amounting to a last straw i. Criticism re. Not entering a burning or unsafe building (7 July email) i. Criticism for taking bereavement leave (7 July email) i. Offered an unsuitable alternative role 1. 19 June oral offer 2. 21 July meeting 3. 31 July correspondence 4. 25 January 2024 meeting, the relied on last straw If so, did that breach cause the Claimant to resign? else, did the Claimant affirm the contract? else, did the Claimant leave for some other reason? 5. If the Claimant is successful, to what remedy is the Claimant entitled? 1. To what level of basic award is the Claimant entitled? 2. Polkey 3. Contributory conduct 4. ACAS uplift.
Findings of Fact
[12]The findings of fact are made on basis of the balance of probabilities based on the evidence presented.[13]The Respondent operates a several Italian restaurants across Belgravia, London.[14]The Claimant was employed as a Head Chef from 1 June 2004 working at the Oliveto restaurant, which was based at Elizabeth Steet in London. The Claimant had not worked at any of the Respondent’s other restaurants prior to June 2023.[15]The Claimant was issued with a contract of employment in 2004, when he joined the Respondent, and was issued with updated terms in 2014.[16]The Claimant was a liked and long serving employee and there had not been any problems during the working relationship.[17]The key provisions in the 2004 contract are that the Claimant was paid £38.50 per shift on a weekly basis and: “You will normally be required to work at Oliveto, 49 Elizabeth Street, SW1 and our other sites, when required.”[18]In the 2014 contractual document, the key provisions in relation to this claim are: “2. Duties and Job Title2.1 You are employed by the Company in the capacity of Head Chef and your responsibilities include overall control of the kitchen and responsibility for the hiring and overseeing of the kitchen staff. You are also responsible for matters pertaining to hygiene and health and safety that relate to the kitchen.2.2 The Company reserves the right to vary your duties and responsibilities at any tie and from time to time according to the needs of the Company’s business.” “4. Place of Work Your normal place of work is at the Company’s premises at 49 Elizabeth Street, London SW1W 9 PP but you may from time to time be required to travel on the business of the Company both inside and outside the United Kingdom or to perform your responsibilities and duties at such other place within the United Kingdom as the Company may reasonably request from time to time.” “6. Remuneration6.1 You will be paid weekly in arrears at the rate of £18,564.00 gross per annum Payment will be made by BACS to an account nominated by you.6.2 You will be entitled to overtime payment for hours worked outside your normal weekly hours (as specified above).6.3 The Company’s policy on tips and gratuities is set out in in the staff handbook. …” “ 7. Holidays … 7.5 Holidays must be taken a times convenient to the Company. You must obtain approval of proposed holiday dates in advance from the Office. You will not be allowed to take more than two weeks at any one time, save at the Company’s discretion. You must not book holidays until your request for approval has been formally agreed.”[19]The Staff Handbook deals with Tronc payments, place of work and holidays. Key extracts are set out below.[20]There are two handbooks in bundle, one at page 98 and the other at page 108. The document at 98 appears to be a version in place since 2014. “2.3.6 Tronc The Tronc Master will be advised to you once you join, along with how the Tronc System works. The Tronc Master will advise you how the Tronc is calculated and what you will receive this system is operated outside of the Company Policies.” “2.7 Hours of Work Your hours of work will vary according to the requirements of the business but predominately this is on a shift rota system. It is a conition of your employment that you work flexibly in accordance with the working arrangements and whenever necessary, to transfer to alternative departments or duties within the business. This flexibility is essential at the type and volume of work is always subject to change, and it allows us to operate efficiently a gain maximum potential….” “2.9 Mobility Although you are ususally employed at one particular site, it is a conditon of your employment that you are prepared, whenever applicable, to transfer to any other of our UK sites.” “Holidays may only be taken with the consent of your Manager. Approval of holidays will be granted where resouce planning and sufficient leave entitement permits. You should give at least four weeks’ notice of your intention to take more than 5 days and two weeks' notice for less than 5 days. All holidays are approved on a first come first served basis.”[21]The date of the Handbook at page 108 of the Bundle is not clear, but again, relevant extracts are set out below. “D) Job Flexibility It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments or duties within our business. During holiday and busy periods etc. It may be necessary for you to take over some duties normally performed by colleagues. This flexibility is essential as the type and volume of work is always subject to change, and it allows us to operate efficiently and gain maximum potential. You may be needed to work on public/bank holidays according to your rota and it is a condition of employment that you so as and when it is required.” “E Mobility Although you are usually employed at one particular site, it is a condition of your employment that you are prepared, whenever applicable, to transfer to any other of our sites.” “Holiday requests will only be considered if you have first discussed them with your Manager/Head Chef who will allocate agreed holiday dates on a “first come – first served" basis whilst ensuring that operational efficiency and minimum staffing levels are maintained throughout the year. You should give at least four weeks' notice of your intention to take more than five days and two weeks' notice is required for less than five days.”[22]The Claimant, in addition to his basic salary, also received a share of tips and gratuities. This was managed by a Troncmaster and the amount paid was variable and would depend on how much had been received by the restaurant in service charges and tips and on the hours worked by the Claimant. Although the Claimant, and other staff, regularly receive tronc payments, they did not form part of basic pay. Each restaurant ran its own tronc arrangements. All tronc payments were processed through payroll and recorded in a P60 but payments were arranged and distributed by the Troncmaster.[23]On 8 June 2023 the Claimant’s brother passed away. The Claimant travelled to Italy on 9 June 2023 for the funeral and returned on 14 June 2023. This was a difficult time for the Claimant and his family. The Claimant worked on 15, 16 and 17 June 2023.[24]There was a major fire at Oliveto restaurant, the Claimant’s place of work, on 18 June 2023. The Claimant was not working on the day of the fire. After the fire had been extinguished the fire officer told the Respondent it was safe to enter the building. The fire resulted in the restaurant closing permanently, although this was not known at the time.[25]The following day, 19 June 2023, various members of the restaurant staff and management, including the Claimant attended the site. The Claimant did not enter the premises. The Claimant did not express any concerns about safety to any of the Respondent’s staff. The Respondent, following the fire, sought to make arrangements to redeploy staff and recover stock and equipment.[26]Whilst at the premises the Claimant spoke with the Executive Chef, Andrea Orru. The Claimant was upset and emotional during the discussion.[27]The Claimant told Mr. Orru that he was going to Italy from 29 June until 8 July 2023. In oral evidence Mr. Orru accepted that he said the Claimant could leave a few days earlier. The Claimant went to Italy on 25 June 2023. The Claimant did not attend the restaurant site or do any work related activity between 20 and 24 June 2023.[28]The Respondent did not understand the leave to be bereavement leave and there is no evidence that the Claimant made any request for the period of 29 June to 8 July 2023 to be considered as bereavement leave. The Claimant had booked his trip some three months previously.[29]There was also a brief discussion about the possibility of the Claimant working at other restaurants.[30]The Claimant says Mr. Orru spoke to him about working as a Pasta Chef at another restaurant, Oliviocarne. The Claimant says he was not offered the Head Chef role at Olivo. However, he acknowledged struggling with his mental health at the time of the discussion and being very upset and crying.[31]Mr. Orru says he mentioned both the possibility of the Claimant working as a Pasta Chef at Olviocarne and working as Head Chef at Olivo, as the Head Chef was resigning and that he told the Claimant he would be paid at his Head Chef rate for both posts.[32]Mr. Orru says the Claimant refused both offers and says that the Claimant told him he wanted less stress and less responsibilities and also that he felt he would lose out as he would get less money due to tronc payments and the Pasta Chef role would be a demotion.[33]On the balance of probabilities, I find that during the discussion between the Claimant and Mr. Orru, the Claimant was offered both the option of working as a Pasta Chef and a Head Chef in alternative restaurants. I have made this finding taking into account reference of later events and the documents that indicate the Head Chef role was offered, in particular the documents dated 21 July 2023, 3 August 2923 and 11 January 2024.[34]Also on 19 June 2023, the Claimant text Mr. Orru and said he had made a mistake and that his return ticket was 18 July 2023. He asked Mr. Orru if this would be a problem. There was no evidence of any reply from Mr. Orru in this respect.[35]The Claimant did not request any annual leave from the Head Office, and had already exhausted his annual leave. The Respondent has a process for managing and granting annual leave requests that is managed by Head Office. The Claimant says he managed his own leave and restaurant rota and would tell the Executive Head Chef when he was on leave. There is no evidence that the Claimant has ever made formal written requests for annual leave to the Head Office or the Director, Mauro Sannoi. On balance, I find that in practice the Claimant largely managed his own leave by discussion with the Executive Head Chef, Mr. Orru.[36]On 2 July 2023 Ms. Orru text the Claimant, in Italian, and the translated message in the bundle reads. “Hi Fabio, I am sorry for what happened to you… I am sorry for your mother, you are living a very difficult time. About the Company, I am in a difficult position… Mauro is not happy with the present situation, having lost one restaurant. None of you has offered any help… all the stock is still in the kitchen… surely everything has gone off. You will receive an email in the next days… we can not offer you the same head chef position you had before, and after our chat, I am really disappointed that you can not understand the situation. In a couple of months something may change, but at the moment the position would be as pasta chef at Oliviocarne. Because of what happened, Mauro will pay the house wage due for the position worked. I don’t know if you have thought about what to do but I repeat, it’s not easy. We’ll talk these days.”[37]The reference to the “same head chef position” was reference to working in that position at Oliveto, where the Claimant had been based and there was a fire.[38]This message does not make any reference to the offer of Head Chef working at Olivo, but does refer the role of Pasta Chef at Olivocarne and reference a discussion between them and Mr. Orru being disappointed in the Claimant’s seemingly lack of understanding about the situation.[39]The Claimant replied to Mr. Orru a few days later and told him that he was not feeling well, had fallen into a deep depression, couldn’t face working in the kitchen and would send a doctor’s note.[40]The Claimant did not return to the UK on 8 July 2023.[41]On 7 July 2023 Mr. Pope, General Manager, emailed the Claimant inviting him to a meeting on 21 July 2023 to discuss work matters.[42]Mr. Sanna had been upset by the Claimant’s actions following the fire, and had expected the Claimant to assist in the aftermath of the fire.[43]The email opened with Mr. Pope expressing the Respondent’s disappointment that the Claimant had not been available after the fire to assist and he was considered to be absent without the correct leave and that his leave was treated as unauthorized. The email indicates that the Respondent was frustrated with the Claimant’s lack of contact with the owner, Mauro Sanna, and the Head Office following the fire and the way the Claimant had taken leave. “As a business we have done everything within our powers to redeploy our staff members. However, it is noted that you visited the site on the 19th June 2023 the day after the fire and have then not been seen again since. As Head Chef we had presumed that you would be returning to help with salvaging whatever food products and other supplies could still be of use and to be involved in assisting regarding the situation of your staff. However you disappeared without speaking to Mauro Sanna or informing the Head Office and are currently absent without the correct leave.”[44]In relation to the alternative roles available to the Claimant, the email said: “As you have been made aware we have made every effort to ensure that all of those who have lost their former positions at Oliveto have been offered some form of employment in one of our other sites even though this may have to involve some change of position until such time as we are able to consider the reopening of a restaurant at 49 Elizabeth Street. We understand that Andrea Orru did mention a possible position as pasta chef at Olivocarne, 61 Elizabeth Street but that you did not want to accept it even though you were offered your normal salary and state that you require the Head Chef position there. Andrea also mentioned the possibility of you taking the Head Chef’s position at Olivo when the current Head Chef leaves in a few weeks’ time but that you dismissed that as you felt you would be earning less money.”[45]The email closed by explaining “the purpose of the meeting will be to discuss your return to work; understand what you have been up to whilst away from the business for over a month; understand how we can support you in transitioning to an alternative role within the business; and understand how you are feeling.”[46]The Respondent treated the Claimant’s leave as unauthorised.[47]Although the Respondent’s director, Mr. Sanna, had been disappointed by the Claimant’s actions following the fire the Respondent did not consider taking any disciplinary action and wished for the Claimant to return to working in another restaurant.[48]The Claimant did not reply to the email and Mr. Pope emailed the Claimant again on 14 July 2023.[49]The Claimant visited a doctor when he was in Italy and was diagnosed with depression and signed unfit to work from 8 July 2023.[50]On 17 July 2023 the Claimant sent a sick note from an Italian doctor and Mr. Pope emailed the Claimant on the same day told the Claimant he needed a UK GP fit note in order to process sick pay.[51]The Claimant did not return to work at all following the fire and sent UK GP fit notes stating he was not fit for work throughout his absence. The initial fit notes referenced sudden bereavement and from 16 August 2023 cite depression and from February 2024 depression and anxiety.[52]The Claimant returned to the UK on 19 July 2023.[53]The Claimant met with Mr. Pope and Ms. Orru on 21 July 2023. There are no notes of the meeting.[54]Before leaving the meeting the Claimant handed over a fit note stating he was unfit to work until 6 August 2023.[55]Mr. Pope emailed the Claimant on 31 July 2023 summarizing the meeting and asked him to attend a further meeting on 7 August 2023.[56]In relation to alternative work, the email states: “Following your meeting with Andrea Orru on 21st July 2023, this is to confirm that you have been offered the post of Pasta Chef at Oliveto, 61 Elizabeth Street, London SW1W 9PP. This position comes with a salary of £22,386 gross per annum (based on 7 shifts per week) plus a share of the Oliveto Tronc scheme but that further income is hard to quantify and obviously depends on the amount of business. We appreciate your concern that this post provides a lower level of income than you received previously but efforts would be made to give you extra shifts when possible to help raise the income.”[57]A P60 dated April 2023 shows that the Claimant received £25,391.20 in pay from the Respondent that year. Mr. Pope, in oral evidence, accepted that the sum of £22,386 was less but that the role of Pasta Chef was offered at the same basic pay that he had been on, and this may have been an error on his part. On review of the email I consider there to be an error in relation to the name of the restaurant where the pasta chef role would be. The role was at Olivocarne but the email refers to Oliveto, the restaurant that caught fire, which clearly is not correct.[58]The email makes no reference to any offer of an alternative Head Chef position. However, the oral evidence of Mr. Orru and Mr. Pope was clear that they recall the Head Chef position at Olivo being discussed at the meeting. On balance, I find the Head Chef role was discussed, noting the clear witness evidence and the reference to it in the email dated 21 July 2023. Further, on the balance of probabilities, taking all the evidence into account I find that the Pasta Chef role at Olivocarne was offered to the Claimant at the meeting on 21 July 2023 on the same basic pay as he had been on as Head Chef at Oliveto. I find that at the meeting the Claimant raised concerns about the level of Tronc and the Respondent suggested it could prioritise additional shift. The Respondent cannot guarantee any level of Tronc monies.[59]The email also sets out that it considered the Claimant’s actions following the fire to be unprofessional.[60]The Claimant did not reply to the email and Mr. Pope emailed him again on 3 August 2023. Within the email Mr. Pope said: “As was mentioned in the previous email we appreciate that this position is a demotion from your previous post but feel we must remind you that you were originally offered by Andrea Orru the Head Chef’s job at Olivo but that you declined it because you considered the wage attached to that position would not be enough. Once you had refused that post other arrangements were made and, as explained to you previously, the only job currently available is the one now offered to you at Oliveto.”[61]I consider the reference to Oliveto to be an error by Mr. Pope.[62]The Claimant did not reply to either email.[63]Ms. Orru worked in the kitchens in Olivio from July 2023, this was not part of his usual duties as Executive Head Chef. Mr. Orru’s hope was that the role could be kept vacant for the Claimant. The Head Chef at Olivo finished his notice period at the end of August 2023.[64]Mr. Pope tried to call the Claimant several times but there was no reply.[65]Mr. Pope messaged the Claimant via text on 2 and 26 October 2023, and the Claimant sent a short reply saying thank you on 2 October 2023. In short the 2 October message expressed concern and empathy for the Claimant and that he had not been forgotten.[66]The Claimant sought legal advice around September/October 2023.[67]At some point prior to 16 November 2023 the Claimant sent his CV out and started looking for other work. He attended a recruitment day for bus driving. On 16 November 2023 the Claimant was offered a position as a trainee bus driver role with a start date of 22 January 2024. The Claimant did not start that role on 22 January 2024.[68]On 6 December 2023 Mr. Pope emailed the Claimant asking him to meet on 8 December 2023. The Claimant was notified that his entitlement to statutory sick pay would be expiring shortly. The Claimant replied the next day, 7 December 2023, and said: “My health is not in a position for me to be available for any meeting in person this week or in the near future. I understand the timing of the SSP. Anything else that needs to be discussed can be done via email as I’m not available in person.”[69]On 11 January 2024 Mr. Pope emailed the Claimant and invited him to a meeting on 25 January 2024. Within the email, in relation to previous offers, Mr. Pope said: “We are completely in the dark as to your capability to carry out any form of work and you have not kept us updated as to your whereabouts and if you are in the UK or abroad. You have turned down two positions that were offered to you we would have presumed that by now after so many months you would have at least enquired as to the likelihood of any other potential positions within the Company. You may not be aware but following the fire in June and the huge costs involve in trying to reopen the restaurant at 49 Elizabeth Street which was your place of work, the Company has now been forced for financial reasons into the position of surrendering the lease back to the landlords. As a consequence of our leaving the premises quite soon it is imperative that we have a face to face conversation with you about the future.”[70]The Claimant replied on 24 January 2024 and said he could attend a meeting via Zoom the following day.[71]A meeting took place on 25 January 2024 and the Claimant attended and was accompanied by his son, and Mr. Pope and Mr. Orru were present for the Respondent.[72]Mr. Pope produced a short note of the meeting.[73]The note produced by Mr. Pope is relatively short, and records the discussion as: “He was then asked how he would feel about returning to work with the Company. He replied that he did not want to do that. He said he did not want to do that. He said he had been badly treated by the Company. It was pointed out to him that he had been offered two posts (ones as Head Chef) but that he had refused them both. He said that he would have earned less money and that he had a family to support. He was then told that because of the fire his previous job no longer existed at the former Oliveto restaurant would never reopen. AO suggested that he think about things for a few days and that we could have another zoom meeting but he and his son made it clear that we should now communicate through his solicitor, Erin Garnham, and that he was expecting redundancy money. As the meeting was concluding he was reminded by AO and SP that he had 19 holiday shifts owed to him totalling just over £1,250. SP asked about FA’s wife Lucia and how she was. FA said she was back in London with him as his daughter. About the final comment from FA was that he hoped he would receive a good reference.”[74]There was also a note of the meeting at page 180 of the Bundle that was prepared by the Claimant’s family member. The note is longer, and although it was considered in full I have only set out extracts of the note below. “Andrea/Shayne - … I would like to ask you if you are thinking or planning to come back to work. Fabio – No just like I said before I want to be, if you fire me it’s better, I don’t want to come back anymore, because there is no position for me the position you offer is not suitable for me… Andrea/Shayne - But you are saying that you do not want to return to work for this company Fabio – I don’t want to do anymore anyway i’m sick, I don’t think of coming back I just want to be free from this company Andrea/Shaye – So Fabio you do not want to atleast take a couple of days to think about and then talk about a kind of position that we could give you. Fabio - No…”[75]The notes of the discussion then record a conversation in which the Claimant expressed that he did not feel he had been given a suitable position by the Respondent, that he felt the Respondent had not supported him in the right way, that he felt there was a redundancy situation and that they could fire him. Mr Orru and Mr. Pope are recorded as saying he had not been fired and had been offered other roles. It records there was a discussion about accrued annual leave.[76]The closing comments are recorded as: “Andrea/Shayne – we would try and find a position with in the smaller company you made it clear that you do not want to return so that’s fine so.. Fabio – I don’t want to say nothing because in this moment I am still depressed it’s for this I have a solicitor and situation is the same as it was 7 months ago so there is nothing new”.[77]On the balance, of probabilities, taking all the evidence into account, I find that the Claimant did not use the precise words resign or resignation in the meeting but said several times that he never wished to return to working at the Respondent. Both Mr. Pope and Mr. Orru left the meeting with the clear view that the Claimant never wanted to return working for the Claimant and they considered that meant he was not returning to work, that he had resigned, that there was no other way to interpret what he had said.[78]Mr. Pope and Mr. Orru did not consider the Claimant to be redundant as they felt there was other work available for him.[79]Mr. Pope had taken advice from HR consultants.[80]On 23 February 2024 Mr. Pope emailed the Claimant’ solicitor.[81]Within the email he said: “We will not be responding to the various points and arguments you have raised now as our purpose in writing is to advise you of the decision we have reached further to the zoom meeting held on 25th January when Mr Anedda stated very clearly in front of myself, Mr Andrea Orru and your client’s son, Mr Michael Anedda, that he would never work for our company in any position in the future. This was a repudiatory breach of his contract and entitles us to dismiss him summarily but, in view of his long history with the company, we have decided to give Mr Anedda notice of dismissal as of today’s date and based on his period of employment this is 12 weeks’ notice.”[82]I was not directed to any correspondence between the Respondent and the Claimant’s solicitor between 25 January and 23 February 2024 but find there was correspondence between the parties following the meeting on 25 January 2024 noting the content of the above, and later, emails.[83]This email does not say that the Claimant resigned, but does reference the Claimant said “he would never work for the company in any position in the future.”[84]The Claimant’s entitlement to SSP expired on 4 February 2024.[85]There was an exchange of emails between the Respondent and the Claimant’s solicitor April 2024 and within an email dated 22 April 2024 Mr. Pope said: “this is to confirm as previously stated in our email to you of 23rd February 2024 that Mr Fabio Anedda’s notice of dismissal commenced on that date and that as a result the 12 week period of notice will end on 17th May 2024.”[86]Mr. Pope wrote to the Claimant directly on 7 May 2024 and the key paragraph is set out below: “We write to confirm your resignation following a zoom meeting on 25th January 2024 and subsequent liaising with your solicitor Erin Graham that led to you confirming that you had no intention of returning to work and so from 23rd February 2024 we acknowledged your resignation from Oliveto & Olivo Ltd (the “Company”) via email. You have not worked within the business following a fire in the kitchen on 18th June 2023 and have been offered two roles. One of which was of a similar nature, but the other was as a Head Chef which was a like for like role to the role you had prior to the fire, both of which you declined. Due to the role of Chef still being needed within the business we are unable to make the role redundant and we therefore accepted your resignation through your statement that you have no intention of working for the company again no matter how many roles we offered you. Under your terms of your contract of employment you are required to give 12 weeks' notice to the Company. Your last day of employment will be 17th May 2024.”[87]This letter was the first explicit written reference to the Respondent setting out that it considered the Claimant had resigned.[88]The Claimant’s notice period ended on 17 May 2024. This was the effective date of termination.[89]The Respondent wrote to the Claimant again on 14 and 21 May 2024 and set out information regarding the breakdown of payments.[90]All staff based at the Oliveto branch were redeployed to different locations after the fire, save for the Claimant.
Law
[91]The Employment Rights Act 1996 states:[94]The right. (1)An employee has the right not to be unfairly dismissed by his employer. (2)Subsection (1) has effect subject to the following provisions of this Part (in particular sections 108 to 110) and to the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (in particular sections 237 to 239).[95]Circumstances in which an employee is dismissed. (1)For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) . . . , only if)— (a)the contract under which he is employed is terminated by the employer (whether with or without notice), (b)he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or (c)the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. (2)An employee shall be taken to be dismissed by his employer for the purposes of this Part if— (a)the employer gives notice to the employee to terminate his contract of employment, and (b)at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire; and the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given.[98]General. (1)In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a)the reason (or, if more than one, the principal reason) for the dismissal, and (b)that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2)A reason falls within this subsection if it— (a)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b)relates to the conduct of the employee, (c)is that the employee was redundant, or (d)is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (3)In subsection (2)(a)— (a)“capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b)“qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case. (6) Subsection (4) is subject to— (a)sections 98A to 107 of this Act, and (b)sections 152, 153, 238 and 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal on ground of trade union membership or activities or in connection with industrial action).92. The principles in relation to unfair dismissal are set out in established case law, and are not repeated within this judgment.93. In relation to constructive unfair dismissal, section 95 ERA defines the circumstances in which a person is dismissed as including where: “(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”94. That is known as constructive dismissal. The leading explanation of when those circumstances arise was given by Lord Denning in Western Excavating (ECC) Ltd v Sharpe 1978 ICR 221: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employers conduct. He is constructively dismissed.”95. The Tribunal, when looking at an alleged breach of contract, must look at the employer’s conduct as a whole and determine whether it is such that the employee cannot be expected to put up with it. (see Browne – Wilkinson J in Woods v W M Car Services (Peterborough) ltd [1981] IRLR 347).96. Where there is a complaint of constructive dismissal, the burden is on the employee to prove the following: a) That there was a fundamental breach of contract on the part of the employer; b) That the employer’s breach caused the employee to resign; c) The employee did not affirm the contract and lose the right to resign and claim constructive dismissal.97. A fundamental breach of any contractual term might give rise to a claim of constructive dismissal. However, a contractual term often relied upon in cases such as this is that which is described as the implied term of mutual trust and confidence. 98. The leading authority on this implied term is the House of Lords decision in Malik v Bank of Credit and Commerce International AS [1997] IRLR 462. In this case Lord Steyn adopted the definition which originated in Woods v W M Car Services (Peterborough) Ltd namely, that an employer shall not, without reasonable or proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee.[99]It is noted that a breach of trust and confidence has two limbs: the employer must have conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee; and there be no reasonable or proper cause for the conduct.[100]The test is objective. As set out by Lord Steyn in Malik: “The motives of the employer cannot be determinative or even relevant…. If conduct objectively considered is likely to destroy or serious damage the relationship between employer and employee, a breach of the implied obligation may arise.”[101]Reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach; but it is not a legal requirement (see Bournemouth University v Buckland [2010] ICR 908 at para 28).[102]In addition, it is clear from Leeds Dental Team v Rose [2014] IRLR8 that whether or not behaviour is said to be calculated or likely to destroy or seriously damage the trust and confidence between the parties is to be objectively assessed, and does not turn on the subjective view of the employee.[103]Individual actions taken by an employer which do not in themselves constitute a fundamental breach of any contractual term may have the cumulative effect of undermining trust and confidence, and in such a case, the employee is entitled to resign and claim constructive dismissal. This is referred to as “the last straw” (Lewis v Motorworld Garages Ltd [1985] IRLR 465).[104]In particular, in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?[105]The last straw itself does not need to be unreasonable or blameworthy conduct, all it must do is contribute, however slightly, to the breach of the implied term of mutual trust and confidence, (London Borough of Waltham Forrest v Omilaju [2005] IRLR 35). However, an entirely innocuous act cannot be a final straw, even if the employee genuinely but mistakenly interprets the act as hurtful and destructive of mutual trust and confidence.[106]The final straw should be an act in a series whose cumulative effect is to amount to a breach of the implied term. The act does not have to be of the same character as the earlier acts but it must contribute something to that breach, although what it adds may be relatively insignificant.[107]In Kaur v Leeds Teaching Hospital NHS Trust [2018] IRLR, the Court of Appeal approved the guidance given in Waltham Forest LBC v Omilaju. The authorities give comprehensive guidance on the “last straw” doctrine.[108]The employee must prove that an effective cause of her resignation was the employers’ fundamental breach. However, the breach does not have to be the sole cause, there can be a combination of causes provided an effective cause for the resignation is the breach, the breach must have played a part (see Nottingham County Council v Miekel [2005] ICR 1 and Wright v North Ayrshire Council UKEAT/0017/13). In Bournemouth University Higher Education Corporation v Buckland 2010 ICR 908 the Court of Appeal held that a repudiatory breach cannot be unilaterally cured by the party in default. However, Lord Justice Sedley warned: “A wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends”.[109]In relation to resignations, a resignation is the termination of a contract of employment by the employee. The contract will not actually come to an end until the employee has communicated his or her resignation to the employer, either by words or by conduct. This is set out in Edwards v Surrey Police 1999 IRLR 456, EAT. A resignation need not be expressed in a formal way, it does not need to be in writing and no specific form of words are required, and it may be inferred from the employee’s conduct and the surrounding circumstances as established in Johnson v Monty Smith Garages Ltd EAT 657/79.[110]There is not general any problem when unambiguous words are used, where they are not said in a situation of anger or heightened emotion or whether there are other relevant circumstances.[111]The EAT, in Omar v Epping Forest District Citizens Advice [2023] EAT 132, [2024] IRLR 92, set out helpful guidance.(a) There is no such thing as the 'special circumstances exception'; the same rules apply in all cases where notice of dismissal or resignation is given in the employment context.(b) A notice of resignation or dismissal once given cannot unilaterally be retracted. The giver of the notice cannot change their mind unless the other party agrees.(c) Words of dismissal or resignation, or words that potentially constitute words of dismissal or resignation, must be construed objectively in all the circumstances of the case in accordance with normal rules of contractual interpretation. The subjective uncommunicated intention of the speaking party is not relevant; the subjective understanding of the recipient is relevant but not determinative.(d) What must be apparent to the reasonable bystander in the position of the recipient of the words is that: (i) the speaker used words that constitute words of immediate dismissal or resignation (if the dismissal or resignation is 'summary') or immediate notice of dismissal or resignation (if the dismissal or resignation is 'on notice') – it is not sufficient if the party merely expresses an intention to dismiss or resign in future; and (ii) the dismissal or resignation was 'seriously meant', or 'really intended' or 'conscious and rational'. The alternative formulations are equally valid. What they are all getting at is whether the speaker of the words appeared genuinely to intend to resign/dismiss and also to be 'in their right mind' when doing so.(e) In the vast majority of cases where words are used that objectively constitute words of dismissal or resignation there will be no doubt that they were 'really intended' and the analysis will stop there. A tribunal will not err if it only considers the objective meaning of the words and does not go on to consider whether they were 'really intended' unless one of the parties has expressly raised a case to that effect to the tribunal or the circumstances of the case are such that fairness requires the tribunal to raise the issue of its own motion.(f) The point in time at which the objective assessment must be carried out is the time at which the words are uttered. The question is whether the words reasonably appear to have been 'really intended' at the time they are said.(g) However, evidence as to what happened afterwards is admissible insofar as it is relevant and casts light, objectively, on whether the resignation/dismissal was 'really intended' at the time.(h) The difference between a case where resignation/dismissal was not 'really intended' at the time and one where there has been an impermissible change of mind is likely to be a fine one. It is a question of fact for the tribunal in each case which side of the line the case falls.(i) The same rules apply to written words of resignation / dismissal as to spoken words.[112]In short, the test of whether ostensibly ambiguous words amount to a dismissal or a resignation is an objective one and requires consideration of all the surrounding circumstances, and if the words are still ambiguous, the employment tribunal should ask itself how a reasonable employer or employee would have understood them in the circumstances.[113]The question is whether, viewing the situation objectively from the perspective of a reasonable bystander, the person speaking the words not only used words that constituted words of resignation or dismissal, but also that objectively it would have appeared that he or she ‘really intended’ to resign at the time they were said.[114]Any ambiguity is likely to be construed against the person seeking to rely on it.[115]When considering all the circumstances, a tribunal will look at events both preceding and subsequent to the incident in question and take account of the nature of the workplace in which the misunderstanding arose.[116]The subjective understanding of the recipient is relevant, though not determinative, and evidence as to what happened afterwards is admissible in so far as it is relevant and casts light, objectively, on whether a resignation was ‘really intended’.[117]The authorities, in relation to ambiguous statements, are in favour of the objective view, i.e. that the issue is how a reasonable listener would have construed the words used in all the circumstances of the case.[118]It is also important to note that there are circumstances where an employer refuses to continue the employment relationship because the employee has repudiated the contract. If the employee's conduct does have the effect of terminating the contract, there is no dismissal in law and the question of whether the employer has acted reasonably in all the circumstances of the case becomes irrelevant.
Conclusions
[119]Both parties gave lengthy oral submissions. Mr. Sutton had provided a written skeleton and a bundle of authorities. Mr. Griffiths provided two case authorities.[120]The Claimant’s primary case is that he did not resign and was expressly dismissed, and that his dismissal was unfair. The alternative argument advanced is that if I were to conclude that the Claimant had resigned the Claimant says he was constructively unfairly dismissed – that he was forced to resign following breaches of the implied term of trust and confidence.[121]The Respondent’s primary defence is that the Claimant resigned. It’s alternative defence is that the Claimant was in repudiatory breach of contract and the dismissal was fair.[122]The list of issues, as prepared by the parties, sets out the first issue for consideration is whether the Claimant resigned. The list of issues sets out two questions, as copied below, but I consider that I am able to deal with them together. - Did the Claimant resign during the meeting on 25 January 2024. - Was the Respondent entitled to treat the Claimant’s words, in the context of his absence as notice of resignation on 25 January 2024?[123]I have considered what was said at the meeting on 25 January 2024 very carefully, in particular the two written notes of the meeting, and the witness evidence.[124]I do consider the subsequent emails between Mr. Pope and the Claimant’s solicitor add a further layer of complication, but have kept in mind that there appears to have been correspondence that I am not privy to, potentially because the correspondence is privileged.[125]I have considered whether the words said by the Claimant at the meeting were unambiguous, or indeed ambiguous.[126]I conclude that, during the meeting, the Claimant clearly stated, on more than one occasion, that he had no intention of returning to work at the Respondent[127]Applying the guidance in Omar, I concluded that Mr. Orru and Mr. Pope did understand the Claimant to be resigning when he stated that he did not wish to work for the Respondent again, and that although this was their subjective understanding, a reasonable bystander would have objectively understood the Claimant to have been resigning by making such comments.[128]I do not consider this to be a case where the Claimant made such comments in the heat of the moment or said them in anger. I note the Claimant was experiencing depression, but the context in which he said he would not return to work was in a zoom meeting, his son was present and some 8 weeks earlier he had attended a bus driver recruitment day. There is no indication that the Claimant was under any pressure at the meeting or that he was not in his right mind.[129]It was evident from later comments made by the Claimant that he appeared to wish for a redundancy payment, and made reference to being fired, but in consideration of exactly what was said I do not consider this changes the reasonable interpretation and objective assessment that at the meeting the Claimant resigned.[130]It is the case that on 23 February 2024 Mr. Pope wrote to the Claimant’s solicitor as set out above. The contents of the letter were sent on advice, and although within it is states the Respondent has decided to give notice of dismissal this sentence comes after the letter sets out that the Claimant said he would never work for the Respondent again.[131]Based on all the evidence, and the fact that a resignation cannot be unilaterally withdrawn, I do not consider this email, and that dated 22 April 2024, render the position to be that the Claimant was dismissed when he had, in my view, resigned a month earlier. The was no evidence of any withdrawal of resignation.[132]Notwithstanding the exact formulation of the written list of issues, I clarified with the parties that the Claimant’s case was, if it was found he did resign or the Respondent was entitled to treat the words as resignation, that he says he was forced to resign, namely he had been constructively dismissed.[133]Accordingly, as I found the Claimant resigned on 25 January 2024, and was not expressly dismissed, the next issue for determination was whether the Claimant constructively dismissed under section 95(1)(c) of the Employment Rights Act 1996.[134]The Claimant relies on the following alleged cumulative breaches: Criticism re. Not entering a burning or unsafe building – 7 July 2023 email - Criticism for taking bereavement leave – 7 July 2023 email Being offered an unsuitable alternative role [Pasta Chef] - 19 June oral offer,21 July meeting, 31 July correspondence and 25 January 2024 meeting (the relied on last straw)[135]Ms. Sutton confirmed that the Claimant’s case was not that each of the events above amounted to a breach of the implied term of trust and confidence but that they cumulatively did so. Accordingly, the question is, does the cumulative series of acts taken together amount to a breach of the implied term?[136]I have considered the email dated 7 July 2023 carefully. The email did express the Respondent’s frustrations at the Claimant’s actions following the fire. As set out in the findings of fact above, the Claimant was not present on the day of the fire. The Claimant attended the restaurant site the following day, after the fire had been extinguished. Staff re-entered the building after the fire officer said it was safe to enter, but the Claimant did not.[137]The Claimant may have felt it was not a safe building, but he did not express this to the Respondent’s management at the time. The email does explain that Mr. Sanna had been upset by the Claimant’s actions following the fire, and had expected the Claimant to assist in the aftermath of the fire. The allegation itself uses the wording “criticism re. Not entering a burning or unsafe building”. I do not consider this allegation happened as a matter of fact. The Claimant was not present on the day of the fire. Noone entered the building until the fire office declared it safe to do so. The Claimant was criticised for not attending to help the Respondent, at the restaurant and to redeploy staff, after the file. In the context of the Clamant’s senior position, and his lack of contact (noting he was bereaved at the time) the Claimant provided no explanations for his whereabouts between 19 and 24 June 2023 before he went to Italy on 25 June 2023. In those circumstances, I consider the comments in the email to be fair.[138]The email does not criticise the Claimant for taking bereavement leave. This was not said as a matter of fact. The . The Claimant did not request any bereavement leave and the Respondent understood the Claimant to be on preplanned leave, that he had brought forward, and I note that the bringing forward was approved by Mr. Orru.[139]The findings of fact set out my determination of what was said in relation to the offers of alternative roles, both in relation to the Head Chef role and the Pasta Chef role. The roles were offered at the same basic pay. The Respondent had no control over the level of tronc payments at any of its restaurants as such payments depended on custom and the level of tips left by customers.[140]In view of the circumstances, his previous place of work having been closed due to a fire, I do not consider there to be anything unreasonable about the offers made to the Clamant, at full basic pay, in an attempt to retain his employment. I do not consider there to be anything said by the Respondent at the meeting on 25 January 2024 that can be relied on as last straw event, indeed, the Respondent had sought to discuss the Pasta Chef role with the Claimant from the date of the fire.[141]Further, on both accounts of the meeting it was the first comment made by the Claimant in which he said he did not wish to return to work. The offer of the Pasta Chef role had not even been mentioned at this early point in the meeting.[142]For completeness, although not the case advanced, I do not consider that any of the alleged breaches individually amount to a breach of the implied term of trust and confidence.[143]I considered whether the incidents taken together, cumulatively, constituted a series of acts that amount to a breach of the implied term. I conclude that they do not. Although the Claimant undoubtedly feels strongly about the management of his situation, objectively, I do not find the Respondent conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence. This is not a case where the Respondent had no proper cause for its conduct. It sought to support the Claimant’s return to work. Further, have found that the events relied upon as last straw events did not contribute in any way to amount to a breach of the implied term of trust and confidence.[144]As I have concluded there was no breach of the implied term of trust and confidence, I have not gone on to consider the reason for the Claimant’s resignation as it was not necessary for me to do so.[145]The Claimant’s claim of unfair dismissal fails. Approved by: